Citation Nr: 0839357
Decision Date: 11/17/08 Archive Date: 11/25/08
DOCKET NO. 05-25 438A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to an increased disability rating for
service-connected right ankle ligament reconstruction
currently evaluated as 10 percent disabling.
2. Entitlement to an increased disability rating for
service-connected left ankle sprain currently evaluated as 10
percent disabling.
3. Entitlement to a compensable disability rating for
service connected lumbosacral strain.
4. Entitlement to a compensable disability rating for
service-connected bilateral hearing loss.
5. Entitlement to service connection for multilevel
degenerative disc disease as secondary to service-connected
lumbosacral strain and/or bilateral ankle disability.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
J. Alsup, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1986 to
October 1993.
This matter comes before the Board of Veterans' Appeals (the
Board) on appeal from a February 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio.
Procedural history
The veteran's January 2003 claims for increased disability
ratings for his bilateral ankles, back and hearing
disabilities were deferred in an October 2003 rating
decision. The February 2004 rating decision continued the
assigned disability ratings and the veteran disagreed. In
addition, the veteran raised a new claim contending his
degenerative disc disease of the spine was caused by his
service connected lumbar strain. That claim was denied in
the February 2004 rating decision and the veteran disagreed.
The issue of entitlement to service connection for
degenerative disc disease of the spine as secondary to
service-connected lumbar strain and/or bilateral ankle
disability is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The veteran's right ankle disability is manifested by
plantar flexion to 20 degrees and dorsiflexion to 15 degrees.
2. The veteran's left ankle disability is manifested by
plantar flexion to 35 degrees and dorsiflexion to 10 degrees.
3. The veteran's lumbosacral strain is essentially
asymptomatic.
4. On his most recent (April 2007) VA audiological
examination, the right ear average decibel loss for the right
ear of 52.5 and the average for the left ear was 41.25, with
speech recognition ability of 84 percent in the right ear and
88 percent in the left ear.
CONCLUSIONS OF LAW
1. The criteria for a 20 percent disability rating for
service-connected right ankle ligament reconstruction are
met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a
[Diagnostic Code 5271] (2008).
2. The criteria for an increased disability rating for
service-connected left ankle sprain are not met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.71a [Diagnostic Code 5271]
(2008).
3. The criteria for a compensable disability rating for
service-connected lumbar strain are not met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.71a [Diagnostic Code 5237]
(2008).
4. The criteria for an increased (compensable) disability
rating for the veteran's bilateral hearing loss have not been
met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.385,
4.85, Diagnostic Code 6100 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran essentially contends that his service-connected
disabilities are worse than VA has rated them. The Board
will address preliminary matters and then render a decision
on the issues on appeal.
Duties to notify and assist
Upon receipt of a substantially complete application for
benefits, VA must notify the claimant what information or
evidence is needed in order to substantiate the claim and it
must assist the claimant by making reasonable efforts to get
the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R.
§ 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). The notice required must be provided to the claimant
before the initial unfavorable decision on a claim for VA
benefits, and it must (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; and
(3) inform the claimant about the information and evidence
the claimant is expected to provide.
38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v.
Principi, 18 Vet. App. 112, 120 (2004).
In this case, the veteran was informed in letters dated March
2003 and February 2005 that in order to substantiate a claim
for an increased disability rating, the evidence must show
that his service-connected disabilities had gotten worse.
The letters also notified the veteran to submit any evidence
he had, including his own statements and statements of those
who could observe and describe how his service-connected
disabilities had gotten worse, medical records or opinions
that pertained to the current condition of his disabilities,
and the additional disablement caused by his disabilities.
Moreover, as this case involves claims for increased ratings,
additional notice is required under section 5103(a). Such
notice must meet the following four-part test:
(1) that the Secretary notify the claimant that, to
substantiate a claim, the claimant must provide, or
ask the Secretary to obtain, medical or lay
evidence demonstrating a worsening or increase in
severity of the disability and the effect that
worsening has on the claimant's employment and
daily life;
(2) if the Diagnostic Code under which the claimant
is rated contains criteria necessary for
entitlement to a higher disability rating that
would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in
severity of the disability and the effect of that
worsening has on the claimant's employment and
daily life (such as a specific measurement or test
result), the Secretary must provide at least
general notice of that requirement to the claimant;
(3) the claimant must be notified that, should an
increase in disability be found, a disability
rating will be determined by applying relevant
Diagnostic Codes, which typically provide for a
range in severity of a particular disability from
noncompensable to as much as 100 percent (depending
on the disability involved), based on the nature of
the symptoms of the condition for which disability
compensation is being sought, their severity and
duration, and their impact upon employment and
daily life;
(4) the notice must also provide examples of the
types of medical and lay evidence that the claimant
may submit (or ask the Secretary to obtain) that
are relevant to establishing entitlement to
increased compensation, e.g., competent lay
statements describing symptoms, medical and
hospitalization records, medical statements,
employer statements, job application rejections,
and any other evidence showing an increase in the
disability or exceptional circumstances relating to
the disability.
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). For the
following reasons, the Board finds that the elements of the
Vazquez-Flores test have either been met or that any error is
not prejudicial.
Preliminarily, the Board notes that the notice provided in
this case was issued prior to the decision in Vazquez-
Flores. As such, it does not take the form prescribed in
that case. However, the Vazquez-Flores decision does not
mandate remand by the Board for every increased-compensation
claim; remand is only required where the notice provided was
inadequate and not otherwise shown to be non-prejudicial.
See also Medrano v. Nicholson, 21 Vet. App. 165, 170-71
(2007) (Board is not prohibited from evaluating for harmless
error, however, the Court gives no deference to any such
evaluation, which is subject to the Court's de novo review).
Failure to provide pre-adjudicative notice of any of the
necessary duty to notify elements is presumed to create
prejudicial error. Sanders v. Nicholson, 487 F.3d 881
(2007). The Secretary has the burden to show that this error
was not prejudicial to the veteran. Id., at 889. Lack of
prejudicial harm may be shown in three ways: (1) that any
defect was cured by actual knowledge on the part of the
claimant, (2) that a reasonable person could be expected to
understand from the notice what was needed, or (3) that a
benefit could not have been awarded as a matter of law. Id.,
at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103,
(2005), rev'd on other grounds, Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006). The Federal Circuit indicated
that this was not an exclusive list of ways that error may be
shown to be non prejudicial. See Sanders, at 889. In order
for the Court to be persuaded that no prejudice resulted from
a notice error, the record must demonstrate that, despite the
error, the adjudication was nevertheless essentially fair.
See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).
As noted above, the March 2003 and February 2005 letters
requested that the veteran provide evidence describing how
his disability had worsened. In addition, the veteran was
questioned about the effect that worsening has on his
employment and daily life during the course of the various VA
examinations performed in association with this case. The
Board finds that the notice given, the questions directly
asked and the responses provided by the veteran (both at
interview and in his own statements) show that he knew that
the evidence needed to show that his disabilities had
worsened and what impact that had on his employment and daily
life. Actual knowledge can also be established by the fact
that the veteran stated in his notice of disagreement (NOD)
received in December 2004 that his right ankle "has worsened
and his limitation of motion is marked and warrants higher
rating." Similarly, in the NOD, the veteran contended that
all conditions had worsened and warranted a higher disability
rating. As noted below, the veteran's use of the term
"marked" indicates that he knew of the evidence required to
demonstrate that his ankle condition had worsened. In
addition, the veteran described in detail the evidence of
record that he thought supported his claims for increased
disability ratings. As the Board finds veteran had actual
knowledge of the requirement, any failure to provide him with
adequate notice is not prejudicial. See Sanders, supra. The
Board finds that the first criterion is satisfied. See
Vazquez-Flores.
As for the second element, the Diagnostic Code under which
the veteran is rated does not contain specific criteria
necessary for entitlement to a higher disability rating.
Rather, higher ratings can be assigned simply by the veteran
demonstrating a noticeable worsening or increase in severity
of the disability and the effect of that worsening has on his
employment and daily life. To the extent the criteria
contain anything that could be construed as a specific
measurement or test result, such information was solicited
through the various VA examinations provided to the veteran.
Moreover, he was provided at least general notice of the
requirements of Diagnostic Codes 5237, 5271 and 6100 through
the July 2005 Statement of the Case. Although this document
cannot serve as a notice document, it can serve to show
actual knowledge on the part of the veteran, with the result
of no prejudice to him by the Board deciding his appeal at
this time. Crucially, the veteran was informed in a March
2006 letter that disability ratings are assigned ranging from
0-to-100 percent based on the severity of the disability, and
the effective dates of increased payments are assigned based
either on when a claim is received or when the evidence shows
a level of disability that supports a certain rating under
VA's schedule. See Dingess v. Nicholson, 19 Vet. App. 473
(2006). The Board finds that any error in the second element
of Vazquez-Flores notice is not prejudicial. See Sanders,
supra.
As for the third element, the veteran was not provided notice
that a disability rating would be determined by application
of the ratings schedule and relevant Diagnostic Codes based
on the extent and duration of the signs and symptoms of his
disability and their impact on his employment and daily life.
See Vazquez-Flores. The Board notes that the ratings
schedule is the sole mechanism by which a veteran can be
rated, excepting only referral for extraschedular
consideration and special monthly compensation. See 38
C.F.R. Part 4. Neither the Board nor the RO may disregard
the schedule or assign ratings apart from those authorized by
the Secretary and both must apply the relevant provisions.
Id. As such, notice to the veteran that the rating schedule
will be applied to the symptomatology of his disability has
no impact on the fundamental fairness of the adjudication
because it refers to legal duties falling upon VA, not upon
the veteran and cannot be changed. The Board finds that the
error in the third element of Vazquez-Flores notice is not
prejudicial. See Sanders, supra.
As to the fourth element, the March 2003 and February 2004
letters provided notice of the types of evidence, both
medical and lay, including employment records, which could be
submitted in support of his claim. The Board finds that the
fourth element of Vazquez-Flores is satisfied.
In light of the foregoing, the Board finds that the
requirements of Vazquez-Flores are met. The Board,
therefore, finds that VA has discharged its duty to notify.
Further, the Court issued a decision in the consolidated
appeal of Dingess v. Nicholson, supra, which held that the
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to five elements of a service connection claim
including: 1) veteran status; 2) existence of a disability;
(3) a connection between the veteran's service and the
disability; 4) degree of disability; and 5) effective date of
the disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
In the present appeal, the veteran was provided specific
notice of how VA determines a disability rating and an
effective date in a letter dated March 2006. The veteran's
claim was readjudicated subsequent to the March 2006 notice
in a May 2007 supplemental statement of the case, thus the
veteran had a meaningful opportunity to participate
effectively in the adjudication of his claim. See Mayfield
v. Nicholson, supra at 1317 and 1323. As a matter of law,
the provision of adequate VCAA notice prior to a
readjudication "cures" any timing problem associated with
inadequate notice or the lack of notice prior to an initial
adjudication. See also Prickett v. Nicholson, 20 Vet. App.
370, 376 (2006).
In addition, the duty to assist the appellant has also been
satisfied in this case. The veteran's service medical
records as well as all pertinent VA and private medical
records identified by the veteran are in the claims file and
were reviewed by both the RO and the Board in connection with
his claim. As noted above, the veteran was also provided
medical examinations regarding his claims in October 2003,
April 2005, and April 2007. For these reasons, the Board
concludes that VA has fulfilled the duty to assist the
veteran in this case.
The Board additionally observes that all appropriate due
process concerns have been satisfied. See 38 C.F.R. § 3.103
(2007). To that end, the veteran declined in writing to
present evidence and testimony at a hearing before a Veterans
Law Judge.
The Board will therefore proceed to a decision on the merits.
(CONTINUED ON NEXT PAGE)
1. Entitlement to an increased disability rating for
service-connected right ankle ligament reconstruction
currently evaluated as 10 percent disabling
2. Entitlement to an increased disability rating for
service-connected left ankle sprain currently evaluated as 10
percent disabling
The veteran's ankle disabilities have been evaluated as 10
percent disabling since the conditions were service-connected
upon his discharge from active duty. He essentially contends
that the condition of each ankle is worse now than they were
then, and that he is entitled to a higher disability rating.
Because both issues present similar facts and identical law,
they will be addressed in the same analysis.
Increased ratings - in general
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4 (2007). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual disorders in civil
occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§
3.321(a), 4.1 (2007).
Rating musculoskeletal disabilities
The Court has held that evaluation of a service-connected
disability involving a joint rated on limitation of motion
requires adequate consideration of functional loss due to
pain under 38 C.F.R. § 4.40 (2008) and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. § 4.45 (2008). See, in general,
DeLuca v. Brown, 8 Vet. App. 202 (1995).
The provisions of 38 C.F.R. § 4.40 state that the disability
of the musculoskeletal system is primarily the inability, due
to damage or infection in parts of the system, to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination, and endurance. According to
this regulation, it is essential that the examination on
which ratings are based adequately portray the anatomical
damage, and the functional loss, with respect to these
elements. In addition, the regulations state that the
functional loss may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
veteran undertaking the motion. Weakness is as important as
limitation of motion, and a part that becomes painful on use
must be regarded as seriously disabled. 38 C.F.R.
§ 4.40 (2008).
The provisions of 38 C.F.R. § 4.45 state that when evaluating
the joints, inquiry will be directed as to whether there is
less movement than normal, more movement than normal,
weakened movement, excess fatigability, incoordination, and
pain on movement.
The intent of the schedule is to recognize painful motion
with joint or periarticular pathology as productive of
disability. It is the intention to recognize actually
painful, unstable, or malaligned joints, due to healed
injury, as entitled to at least the minimum compensable
rating for the joint. 38 C.F.R. § 4.59 (2008).
Standard of review
The current standard of review is as follows. After the
evidence has been assembled, it is the Board's responsibility
to evaluate the entire record.
See 38 U.S.C.A. § 7104(a) (West 2002). When there is an
approximate balance of evidence regarding the merits of an
issue material to the determination of the matter, the
benefit of the doubt in resolving each such issue shall be
given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38
C.F.R. §§ 3.102, 4.3 (2008).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
stated that "a veteran need only demonstrate that there is an
'approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
preponderance of the evidence must be against the claim. See
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
Specific schedular criteria
Diagnostic Code 5271 [ankle, limited motion of], calls for
the assignment of a 10 percent disability rating for moderate
limitation of motion and a 20 percent disability rating for
marked limitation of motion.
The Board notes that terms such as "moderate" and "marked"
are not defined in the Rating Schedule. However, "marked" is
defined as "noticeable; obvious; appreciable; distinct;
conspicuous." See Webster's New World Dictionary, Third
College Edition (1988) at 828. "Moderate" is defined as "of
average or medium quality, amount, scope, range, etc." Id. at
871.
Analysis
Assignment of diagnostic code
An April 2007 VA examination noted that the veteran's right
and left ankles had reduced range of motion.
After review of the entire record, the Board concludes that
Diagnostic Code 5271 [limitation of ankle motion] is most
appropriate because it is precisely congruent with the
clinical findings. The Board also concludes that Diagnostic
Code 5270 [ankle, ankylosis of] is not appropriate for
application in this case because there is no evidence of
ankylosis in the record nor has the veteran argued such.
Schedular rating
As noted, the veteran is currently assigned a 10 percent
disability rating under Diagnostic Code 5271 for each ankle,
which, as noted above, is consistent with moderate limitation
of ankle motion. With regard to the right ankle, the April
2007 examiner noted plantar flexion to 20 degrees and
dorsiflexion to 15 degrees. The Board notes that normal
range of motion is plantar flexion to 45 degrees and
dorsiflexion to 20 degrees. See 38 C.F.R. § 4.71a, Plate II
(2008). X-ray evidence was characterized as showing a normal
ankle.
Whether such findings constitute "moderate" or "marked"
limitation of motion is open to question. The April 2007
examiner noted that the veteran's right ankle has painful
inversion and eversion and the strength of the ankle is
"estimated at grade 3/5." However, a May 2003 VA examiner
noted that the veteran's "gait is unremarkable and there is
no functional limitation on standing or walking." The Board
observes that the May 2003 examiner reported the right ankle
dorsiflexion to 5 degrees and plantar flexion to 70 degrees,
which is well in excess of the normal range of flexion.
An April 2005 examiner reported a range of motion for the
right ankle of dorsiflexion to 15 degrees and plantar flexion
to 25 degrees. The examiner also noted that the veteran
walked with a "right antagalic gait, avoiding stance on the
right foot and supporting his weight using a can held in the
left hand."
Resolving all doubt in favor of the veteran, the Board
concludes that the evidence of increased limited range of
motion of the right ankle and obvious antagalic gait is more
appropriately within the definition of "marked" limitation.
See 38 C.F.R. § 4.7 (2008). Thus, the Board finds that the
criteria of an increase disability rating of 20 percent
disabling under Diagnostic Code 5271 have been met. The
Board observes that a 20 percent disability rating is the
schedular maximum provided under Diagnostic Code 5271.
With regard to the left ankle, the April 2007 examiner
reported a range of motion of plantar flexion to 35 degrees
and dorsiflexion to 10 degrees. The May 2003 examiner noted
range of motion of the left ankle as dorsiflexion of 5
degrees and plantar flexion to 60 degrees. Thus, as above,
the medical evidence shows an improvement of dorsiflexion but
a reduced plantar flexion when comparing the two
examinations. Again, x-ray evidence was characterized as
showing a normal ankle, and painful inversion and eversion
were noted, but no loss of strength was described.
The Board finds that the evidence does not support an
increased disability rating for the veteran's left ankle
because the range of motion does not result in any observable
condition such as a limp or loss of strength. Thus, the
Board finds that the disability is more appropriately within
the definition of "moderate" limitation.
DeLuca considerations
The Board has also considered whether additional increased
rating would be warranted based on functional loss due to
fatigability, incoordination, and lack of endurance. See 38
C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202,
206-07 (1995).
With regard to the right ankle, the Board has awarded the
maximum rating allowable under Diagnostic Code 5271. In
Johnson v. Brown, 10 Vet. App. 80, 85 (1997), the Court
determined that if a claimant is already receiving the
maximum disability rating available based on symptomatology
that includes limitation of motion, it is not necessary to
consider whether 38 C.F.R. § 4.40 and 4.45 are applicable.
In the instant case, the veteran is receiving the maximum
rating allowable under Diagnostic Code 5271 for his right
ankle. Accordingly, the aforementioned provisions of 38
C.F.R. § 4.40 and § 4.45 are not for consideration in this
case.
With regard to the left ankle, the evidence shows the veteran
complained that he will use a cane to support his left ankle
because he tends to put more weight on it while favoring the
right ankle. He stated to both the April 2007 and May 2003
examiners that he has used braces on his right ankle, but
stated to the April 2007 examiner that he did not wear one on
his left ankle. He also stated that the left ankle hurts
more during bad weather and that the left ankle "readily"
turns, causing pain.
The record shows that the April 2007 examiner noted that
"with repetitive motions of his left ankle, plantar flexion
is further reduced to 30 degrees and dorsiflexion is further
reduced to 5 degrees. There were no findings that repetitive
motion caused functional loss due to fatigability,
incoordination, and lack of endurance. Rather, it appears
that the veteran's range of motion is reduced by pain. There
is no other objective medical evidence of functional loss.
The Board finds that the relatively small loss of range of
motion of the left ankle is not sufficient additional
disability, over and above the 10 percent rating now
assigned, to warrant a higher disability rating under §§
4.40, 4.45, 4.59 and DeLuca, supra.
3. Entitlement to a compensable disability rating for
service connected lumbosacral strain.
The veteran contends that his lumbosacral strain is worse now
than when it was originally was service-connected and
evaluated as noncompensable. As noted in the Introduction,
the veteran has sought entitlement to service-connection for
degenerative disc disease of the spine as secondary to his
service connected lumbar strain and/or bilateral ankle
disability. That issue is the subject of the remand portion
of this decision. As discussed more fully below, a VA
examiner has determined that the veteran's L4-L5 herniated
nucleus pulposus status post-discectomy and laminectomy, and
related L4-L5 radiculopathy and failed low back syndrome
status post-neurostimulator implantation, are not related to
his service-connected lumbar strain condition.
The Board has determined that the medical evidence supports a
conclusion that the lumbar strain disability is separate and
distinct from the other spine conditions, and that the lumbar
strain is not inextricably intertwined with the other spine
conditions. Thus, the Board will proceed to a decision
regarding the service-connected lumbar spine disability. See
Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [the
prohibition against the adjudication of claims that are
inextricably intertwined is based upon the recognition that
claims related to each other in the prescribed degree should
not be subject to piecemeal decision-making or appellate
litigation].
The relevant law and regulations for increased disability
ratings and rating musculoskeletal disabilities are stated
above and will not be repeated here.
Assignment of diagnostic code
The veteran's service-connected low back disability is rated
under Diagnostic Code 5237 [lumbosacral strain], which means
that it is rated under the General Rating Formula for
Diseases and Injuries of the Spine, discussed below.
The Board must first consider whether another rating code is
"more appropriate" than the ones used by the RO. See
Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The
assignment of a particular diagnostic code is "completely
dependent on the facts of a particular case. See Butts v.
Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may
be more appropriate than another based on such factors as an
individual's relevant medical history, the diagnosis and
demonstrated symptomatology. Any change in a diagnostic code
by a VA adjudicator must be specifically explained. See
Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).
The veteran's service-connected low back disability is
manifested by complaints pain in the lower back with
occasional pain in both legs, as well as demonstrated
limitation motion with pain. An April 2005 VA examiner
diagnosed the veteran's service-connected condition as lumbar
strain. The 2005 examiner also diagnosed the veteran with
L4-L5 herniated nucleus pulposus status post-discectomy and
laminectomy, and related L4-L5 radiculopathy and failed low
back syndrome status post-neurostimulator implantation.
However, the examiner specifically noted that the service-
connected portion of the veteran's back condition was the
lumbar strain. Based on the diagnoses of lumbar strain, the
Board determines that the most appropriate diagnostic code is
Diagnostic Code 5237.
The Board observes that all lumbar spine disabilities, except
intervertebral disc syndrome, are rated using the same
criteria. The Board has therefore given thought as to
whether the veteran's service-connected back disability could
appropriately be rated as intervertebral disc syndrome under
the different rating criteria found in Diagnostic Code 5243.
However, even though the evidence indicates the veteran has
right L4-L5 radiculopathy, it is unrelated to the issue under
consideration and is unrelated to any service-connected
condition. Indeed, as is more thoroughly discussed below,
the April 2005 VA examiner specifically found no neurological
deficiency related to the veteran's lumbar spine strain
disability. Moreover, if the veteran were top be rated under
the Formula for Rating Intervertebral Disc Syndrome Based on
Incapacitating episodes, this would not be to his advantage,
since there are no incapacitating episodes to be found in the
record.
In summary, the Board believes that the veteran has been
appropriately rated by the RO under Diagnostic Code 5237 and,
as is discussed below, under former rating criteria contained
in Diagnostic Code 5295.
Specific rating criteria
The veteran's claim was received by the RO January 13, 2003.
The Board notes that the applicable rating criteria for the
spine, found at 38 C.F.R. § 4.71a, were amended effective
September 26, 2003. See 68 Fed. Reg. 51, 454-51, 458 (Aug.
27, 2003). Thus, the veteran's claim was filed before the
new rating criteria were applicable.
The veteran was rated under former rating criteria found at
38 C.F.R. § 4.71a, Diagnostic Code 5295 [lumbar strain].
(i.) The former schedular criteria
Prior to 2003, the veteran's service-connected low back
disability has been evaluated by the RO under 38 C.F.R. §§
4.71a, Diagnostic Code 5295 [lumbosacral strain].
Diagnostic Code 5295, effective prior to September 26, 2003,
provided the following:
Severe; with listing of whole spine to
opposite side, positive Goldwaite's sign,
marked limitation of forward bending in
standing position, loss of lateral motion
with osteo-arthritic changes, or
narrowing or irregularity of joint space,
or some of the above with abnormal
mobility on forced motion . . . . . . .
40 percent
With muscle spasm on extreme forward
bending, loss of lateral spine motion,
unilateral, in standing position . . . .
. . 20 percent
With characteristic pain on motion . . .
. . . . . . .10 percent
With slight subjective symptoms only . .
. . . . . . 0 percent
See 38 C.F.R. § 4.71a, Diagnostic Code 5295 (prior to
September 23, 2003).
(ii.) The current schedular criteria
For diagnostic codes 5235 to 5243 (unless 5243 is evaluated
under the Formula for Rating Intervertebral Disc Syndrome
Based on Incapacitating Episodes), effective September 26,
2003, a General Rating Formula for Diseases and Injuries of
the Spine will provide that with or without symptoms such as
pain, stiffness, or aching in the area of the spine affected
by residuals of injury or disease the following ratings will
apply.
The General Rating Formula for Diseases and Injuries of the
Spine provides as follows:
A 100 percent rating is warranted for
unfavorable ankylosis of the entire
spine.
A 50 percent rating is warranted for
unfavorable ankylosis of the entire
thoracolumbar spine.
A 40 percent rating is warranted for
unfavorable ankylosis of the entire
cervical spine; or, forward flexion of
the thoracolumbar spine 30 degrees or
less; or, favorable ankylosis of the
entire thoracolumbar spine.
A 20 percent rating is warranted for
forward flexion of the thoracolumbar
spine greater than 30 degrees but not
greater than 60 degrees; or, forward
flexion of the cervical spine greater
than 15 degrees but not greater than 30
degrees; or, the combined range of motion
of the thoracolumbar spine not greater
than 120 degrees; or, the combined range
of motion of the cervical spine not
greater than 170 degrees; or, muscle
spasm or guarding severe enough to result
in an abnormal gait or abnormal spinal
contour such as scoliosis, reversed
lordosis, or abnormal kyphosis.
A 10 percent rating is warranted for
forward flexion of the thoracolumbar
spine greater than 60 degrees but not
greater than 85 degrees; or, forward
flexion of the cervical spine greater
than 30 degrees but not greater than 40
degrees; or, combined range of motion of
the thoracolumbar spine greater than 120
degrees but not greater than 235 degrees;
or, combined range of motion of the
cervical spine greater than 170 degrees
but not greater than 335 degrees; or,
muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait
or abnormal spinal contour; or, vertebral
body fracture with loss of 50 percent or
more of the height.
See 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2008).
Schedular rating
(i) The former criteria
The veteran's lumbar spine disability has been assigned a
noncompensable (0 percent) rating under former Diagnostic
Code 5295. Essentially, the veteran initially complained of
lower back pain, primarily localized to the lumbosacral
spine. However, the veteran explained to the April 2005
examiner that "his back pain resolved when he was off
crutches and he had no back pain at the time of his
discharge." Based on his review of the medical evidence in
the veteran's VA claims folder and the examination of the
veteran, the April 2005 examiner diagnosed the following:
"Transient low back strain during military service, resolved
with no current residuals or sequelae." Similarly, in the
report of a December 2003 VA examination, it was determined
that the "veteran's current low back pain is not at least as
likely as not related to his in-service back strain."
Rather, the examiner concluded that the veteran's low back
symptoms manifested since 1994 were all related to a post-
service fall, which occurred in 1994. In other words, the
medical evidence of record supports a finding that there are
no current symptoms related to the veteran's service-
connected lumbar strain. Hence, a noncompensable disability
rating is appropriate and an increased disability rating is
accordingly not warranted under the former schedular
criteria.
(ii) The current criteria.
Similarly, because the medical evidence indicates that there
are no current symptoms of the veteran's service-connected
lumbar strain disability, an increased disability rating is
not warranted.
DeLuca considerations
The Board has considered whether an increased disability
rating is warranted for the veteran's lumbosacral strain
disability based on functional loss due to pain, weakness,
excess fatigability, incoordination and flare-ups, pursuant
to 38 C.F.R. §§ 4.40, 4.45 and 4.59, and the Court's holding
in DeLuca v. Brown, 8 Vet. App. 202 (1995).
The Board is unable to identify any clinical findings that
would warrant an increased evaluation under 38 C.F.R. §§
4.40, 4.45 and 4.59.
4. Entitlement to a compensable disability rating for
service-connected bilateral hearing loss.
The veteran contends that his bilateral hearing has worsened
since it was evaluated as noncompensable at the time of his
service connection effective on October 18, 1993. As above,
the relevant law and regulations for increased disability
ratings - in general have been stated above and will not be
repeated here.
Assignment of a diagnostic code
The veteran's bilateral hearing loss is rated noncompensably
(0 percent) disabling under Diagnostic Code 6100.
As before, the assignment of a particular diagnostic code is
"completely dependent on the facts of a particular case," and
any change in a diagnostic code by a VA adjudicator must be
specifically explained. See Butts v. Brown, 5 Vet. App. 532,
538 (1993); Pernorio v. Derwinski, 2 Vet. App. 625, 629
(1992).
The veteran's bilateral hearing loss is currently rated under
38 C.F.R. § 4.85, Diagnostic Code 6100 [hearing impairment]
(2008). Diagnostic Code 6100 is deemed by the Board to be
the most appropriate primarily because it pertains
specifically to the primary diagnosed disability in the
veteran's case (bilateral hearing loss). The Board can
identify nothing in the evidence to suggest that another
diagnostic code would be more appropriate and the veteran has
not requested that another diagnostic code be used.
Accordingly, the Board concludes that the veteran is
appropriately rated under Diagnostic Code 6100.
Specific schedular criteria
In evaluating service-connected hearing loss, disability
ratings are derived by a mechanical application of the rating
schedule to the numeric designations assigned after
audiometric evaluations are performed. See Lendenmann v.
Principi, 3 Vet. App. 345, 349 (1992).
Hearing loss disability evaluations range from noncompensable
to 100 percent based on organic impairment of hearing acuity,
as measured by controlled speech discrimination tests in
conjunction with the average hearing threshold, as measured
by puretone audiometric tests in the frequencies 1000, 2000,
3000 and 4000 cycles per second. The rating schedule
establishes 11 auditory acuity levels designated from Level I
for essentially normal hearing acuity, through Level XI for
profound deafness. VA audiometric examinations are conducted
using a controlled speech discrimination test together with
the results of a puretone audiometry test. The vertical
lines in Table VI (in 38 C.F.R. § 4.85) represent nine
categories of the percentage of discrimination based on the
controlled speech discrimination test. The horizontal
columns in Table VI represent nine categories of decibel (dB)
loss based on the pure tone audiometry test. The numeric
designation of impaired hearing (Levels I through XI) is
determined for each ear by intersecting the vertical row
appropriate for the percentage of discrimination and the
horizontal column appropriate to the puretone dB loss.
The percentage evaluation is found from Table VII (in 38
C.F.R. § 4.85) by intersecting the vertical column
appropriate for the numeric designation for the ear having
the better hearing acuity and the horizontal row appropriate
to the numeric designation level for the ear having the
poorer hearing acuity. For example, if the better ear has a
numeric designation Level of "V" and the poorer ear has a
numeric designation Level of "VII," the percentage
evaluation is 30 percent. See 38 C.F.R. § 4.85 (2008).
The provisions of 38 C.F.R. § 4.86(a) provide that when the
puretone threshold at each of the four specified frequencies
(1000, 2000, 3000, and 4000 Hertz) is 55 dB or more, the
rating specialist will determine the Roman numeral
designation for hearing impairment from either Table VI or
Table VIa, whichever results in the higher numeral. Each ear
will be evaluated separately. The provisions of 38 C.F.R. §
4.86(b) provide that when the puretone threshold is 30 dB or
less at 1000 hertz, and 70 dB or more at 2000 hertz, the
rating specialist will determine the Roman numeral
designation for hearing impairment from either Table VI or
Table VIa, whichever results in the higher numeral. That
numeral will then be elevated to the next higher Roman
numeral. Each ear will be evaluated separately.
Analysis
Schedular rating
The veteran seeks entitlement to a higher disability rating
for his service-connected bilateral hearing loss, which is
currently evaluated as noncompensably disabling. As
indicated above, the resolution of this issue involves
determining the level of hearing acuity in each ear.
The pertinent evidence consists of VA audiological
examinations conducted in June 2003, April 2005 and April
2007. The June 2003 examination revealed the following
puretone thresholds:
HERTZ
1000
2000
3000
4000
RIGHT
25
60
65
60
LEFT
20
20
65
60
The average decibel loss for the right ear was 53 and the
average for the left ear was 41. Speech audiometry revealed
speech recognition ability of 96 percent in the right ear and
100 percent in the left ear.
Applying these values to the rating criteria results in a
numeric designation of level I in the right ear and level I
in the left ear. Under the schedular criteria, this results
in a noncompensable evaluation. See 38 C.F.R. § 4.85 (2008).
The April 2005 examination revealed the following puretone
thresholds:
HERTZ
1000
2000
3000
4000
RIGHT
30
65
65
60
LEFT
25
30
60
60
The average decibel loss for the right ear was 55 and the
average for the left ear was 44. Speech audiometry revealed
speech recognition ability of 92 percent in the right ear and
96 percent in the left ear.
Applying these values to the rating criteria results in a
numeric designation of level I in the right ear and level I
in the left ear. Under the schedular criteria, this results
in a noncompensable evaluation. See 38 C.F.R. § 4.85 (2008).
The April 2007 examination revealed the following puretone
thresholds:
HERTZ
1000
2000
3000
4000
RIGHT
25
60
65
60
LEFT
20
20
65
60
The average decibel loss for the right ear was 52.5 and the
average for the left ear was 41.25. Speech audiometry
revealed speech recognition ability of 84 percent in the
right ear and 88 percent in the left ear.
Applying these values to the rating criteria results in a
numeric designation of level II in both ears. Under the
schedular criteria, this results in a noncompensable
evaluation. See 38 C.F.R. § 4.85 (2008).
Furthermore, the above audiological tests results do not
demonstrate exceptional patterns of hearing impairment
requiring consideration under subsections (a) or (b) of 38
C.F.R. § 4.86 [thresholds of 55 or greater for all four Hertz
frequencies, or 30 or less at the 1000 Hertz frequency and 70
or greater at the 2000 Hertz frequency].
The Board acknowledges that the examinations document that
the veteran has diminished hearing. This is not in dispute.
Indeed, the grant of service connection for hearing loss
presupposes that such in fact exists. See 38 C.F.R. § 3.385
(2008). The question presented regarding the assignment of
an increased rating is whether the schedular criteria have
been met. The schedular criteria are specific and, as
explained above, the veteran's hearing loss is not of
sufficient severity to warrant a compensable rating. See
Lendenmann, 3 Vet. App. at 349.
Based on the review of the entire record, the Board concludes
that the criteria for an increased disability rating for the
veteran's bilateral hearing loss have not been met.
Hart considerations
In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held
that staged ratings are appropriate for an increased rating
claim when the factual findings show distinct time periods
where the service-connected disability exhibited symptoms
that would warrant different ratings. In reaching its
conclusion, the Court observed that when a claim for an
increased rating is granted, the effective date assigned may
be up to one year prior to the date that the application for
increase was received if it is factually ascertainable that
an increase in disability had occurred within that timeframe.
See 38 U.S.C.A. § 5110 (West 2002).
The Board has considered the staging of ratings in this case
as required by Hart. However, at no time during the appeal
period has the veteran's symptomatology reflected a
consistent change in severity of his symptoms as to warrant
staged ratings.
Extraschedular consideration
In denying the claims for higher ratings, the Board also
has considered whether the veteran is entitled to a greater
level of compensation on an extra-schedular basis.
Ordinarily, the VA Schedule will apply unless there are
exceptional or unusual factors which would render application
of the schedule impractical. See Fisher v. Principi, 4 Vet.
App. 57, 60 (1993).
According to the regulation, an extraschedular disability
rating is warranted based upon a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization that would
render impractical the application of the regular schedular
standards. See 38 C.F.R. § 3.321(b)(1) (2007). An
exceptional case is said to include such factors as marked
interference with employment or frequent periods of
hospitalization as to render impracticable the application of
the regular schedular standards. See Fanning v. Brown, 4
Vet. App. 225, 229 (1993). Accordingly, the Board will
address the possibility of the assignment of an
extraschedular rating for the increased disability rating at
issue.
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-
step inquiry for determining whether a veteran is entitled to
an extraschedular rating. First, the Board must first
determine whether the evidence presents such an exceptional
disability picture that the available schedular evaluations
for that service-connected disability are inadequate.
Second, if the schedular evaluation does not contemplate the
claimant's level of disability and symptomatology and is
found inadequate, the Board must determine whether the
claimant's disability picture exhibits other related factors
such as those provided by the regulation as "governing
norms." Third, if the rating schedule is inadequate to
evaluate a veteran's disability picture and that picture has
attendant thereto related factors such as marked interference
with employment or frequent periods of hospitalization, then
the case must be referred to the Under Secretary for Benefits
or the Director of the Compensation and Pension Service to
determine whether, to accord justice, the veteran's
disability picture requires the assignment of an
extraschedular rating.
With respect to the first prong of Thun, the evidence in this
case does not show such an exceptional disability picture
that the available schedular evaluation for the service-
connected bilateral ankle disability, lumbar strain, or
hearing loss is inadequate. A comparison between the level
of severity and symptomatology of the veteran's ankle
disabilities, lumbar strain, and hearing loss with the
established criteria found in the rating schedule for those
disabilities shows that the rating criteria reasonably
describes the veteran's disability level and symptomatology.
The Board further observes that, even if the available
schedular evaluation for the aforementioned disabilities is
inadequate (which it manifestly is not), the veteran does not
exhibit other related factors such as those provided by the
regulation as "governing norms." The record does not show
that the veteran has required frequent hospitalizations for
his ankle disabilities, lumbar strain, and/or hearing loss.
Indeed, it does not appear from the record that he has been
hospitalized at all for that disability. Additionally, there
is not shown to be evidence of marked interference with
employment due to those disabilities. There is nothing in
the record which suggests that the bilateral ankle, lumbar
strain, and/or hearing loss in and of themselves markedly
impacted his ability to perform his job. Moreover, there is
no evidence in the medical records of an exceptional or
unusual clinical picture.
In short, there is nothing in the record to indicate that
this service-connected disability on appeal causes impairment
with employment over and above that which is contemplated in
the assigned schedular rating. See Van Hoose v. Brown, 4
Vet. App. 361, 363 (1993) [noting that the disability rating
itself is recognition that industrial capabilities are
impaired]. The Board therefore has determined that referral
of this case for extra-schedular consideration pursuant to 38
C.F.R. 3.321(b)(1) is not warranted.
ORDER
Entitlement to a 20 percent disability rating for the
service-connected right ankle ligament reconstruction
disability is granted, subject to controlling regulations
applicable to the payment of monetary benefits.
Entitlement to an increased disability rating for service-
connected left ankle sprain is denied.
Entitlement to a compensable disability rating for service
connected lumbosacral strain is denied.
Entitlement to a compensable disability rating for service-
connected bilateral hearing loss is denied.
REMAND
As noted above, upon receipt of a substantially complete
application for benefits, VA must notify the claimant what
information or evidence is needed in order to substantiate
the claim and it must assist the claimant by making
reasonable efforts to get the evidence needed. 38 U.S.C.A. §§
5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). The notice required
must be provided to the claimant before the initial
unfavorable decision on a claim for VA benefits, and it must
(1) inform the claimant about the information and evidence
not of record that is necessary to substantiate the claim;
(2) inform the claimant about the information and evidence
that VA will seek to provide; and (3) inform the claimant
about the information and evidence the claimant is expected
to provide.
38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v.
Principi, 18 Vet. App. 112, 120 (2004).
In this case, the veteran seeks a claim of entitlement to
service connection for degenerative disc disease of the back
secondary to his service connected lumbar strain disability
and/or his bilateral ankle disabilities. There is no
evidence that the veteran was notified what evidence would
substantiate a claim for entitlement to service connection or
secondary service connection. This must be done.
Further, the Board notes that a May 1994 letter from M.J.
Kramer, M.D., intimates that there could be a relationship
between the veteran's right ankle disability and his low back
disability. Specifically, Dr. Kramer indicated that the
veteran's altered gait from his right ankle disability could
be causing his increased back problems/pain. An examination
addressing the issue of secondary service connection should
therefore be conducted.
Accordingly, the case is REMANDED for the following action:
1. VBA shall provide the veteran with
proper notice regarding his claim for
entitlement to service connection for
multilevel degenerative disc disease as
secondary to service-connected lumbosacral
strain and/or bilateral ankle disability
pursuant to the requirements of 38
U.S.C.A. §§ 5103(a) and 38 C.F.R. §
3.159(b)(1).
2. The RO should also arrange for a
physician with appropriate expertise to
review the veteran's VA claims folder and
provide an opinion, with supporting
rationale, as to whether it is at least as
likely as not (probability of 50 percent
or greater) that:
The veteran's lumbar strain and/or
bilateral ankle disability caused or
aggravated his degenerative disc
disease of the lumbar spine.
If it is determined that aggravation
beyond the natural progress of
degenerative disc disease exists, the
examiner should be asked to identify the
baseline level of severity of the symptoms
prior to aggravation and the level of
severity of symptoms due to service
connected aggravation.
3. After undertaking any additional
evidentiary and/or procedural development
which it deems to be necessary, VBA should
readjudicate the veteran's claim for
entitlement to service connection for
multilevel degenerative disc disease as
secondary to service-connected lumbosacral
strain. If the claims remain denied,
issue a supplemental statement of the case
(SSOC) to the veteran and her
representative, and they should be given
an opportunity to respond, before the case
is returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs